Force By and Through Force v. City of Lawrence, Kan., 66791

• Citation: 838 P.2d 896,17 Kan.App.2d 90
• Decision Date: 03 April 1992
• Docket Number: No. 66791,66791
• Parties: Damon Marshall FORCE, By and Through His Natural Mother, Guardian of His Person and Conservator of His Estate, Carol FORCE, Appellant, v. CITY OF LAWRENCE, KANSAS, and Secretary of Transportation of the State of Kansas, Horace B. Edwards, Appellees.
• Court: Court of Appeals of Kansas

Page 896

838 P.2d 896

17 Kan.App.2d 90

Damon Marshall FORCE, By and Through His Natural Mother,

Guardian of His Person and Conservator of His

Estate, Carol FORCE, Appellant, v. CITY OF LAWRENCE, KANSAS, and Secretary of Transportation of

the State of Kansas, Horace B. Edwards, Appellees.

No. 66791.

Court of Appeals of Kansas.

April 3, 1992.

Review Denied June 4, 1992.

Syllabus by the Court

1. Rules for determining when summary judgment is appropriate are stated and applied.

2. The determination of whether placement of a warning sign or traffic control device is discretionary or mandatory depends on the totality of the circumstances involved.

3. The Manual on Uniform Traffic Control Devices adopted by the secretary of transportation pursuant to K.S.A. 8-2003 contains no language creating conditions that would determine when a protected

left-turn signal is to be placed at an intersection.

4. Where no clearly defined mandatory duty or guideline requires the placement or erection of an additional traffic control device, the erection of such additional device rests in the sound discretion of the responsible government authority.

5. Under the facts of this case, any claim that the defendants abused their discretion by erecting, or not erecting, a signal containing left-turn phasing is barred by the discretionary function and the signing exception in the Kansas Tort Claims Act, K.S.A.1991 Supp. 75-6104(e) and K.S.A.1991 Supp. 75-6104(h).

6. Cities are subject to the direction and control of the secretary of transportation for the signing of a connecting link highway. Thus, under K.S.A. 8-2005(b), the Kansas Department of Transportation has sole authority for the signing of a connecting link highway.

Richard E. Rice, Kansas City, Mo., and Micheline Z. Burger, Olathe, for appellant.

Gerald L. Cooley and Michelle A. Redwood, of Allen, Cooley & Allen, Lawrence, for appellee City of Lawrence.

Jay L. Smith, of Office of Chief Counsel, and Michael B. Rees, Chief Counsel, for appellee Kansas Dept. of Transp.

Before BRAZIL, P.J., REES, J., and JOHN W. WHITE, District Judge, assigned.

JOHN W. WHITE, District Judge, assigned:

In this personal injury action, Damon M. Force appeals the trial court's decision granting summary judgment to the defendants City of Lawrence (City) and the Secretary of Transportation for the State of Kansas (KDOT). Force was injured in an automobile accident and claimed the defendants were negligent in failing to install a protected left-turn signal at the intersection of 23rd Street and Ousdahl in Lawrence. The district court held the defendants were immune from liability under the discretionary act exception to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. We affirm the decision of the trial court.

The facts are brief and undisputed. Force suffered serious injuries resulting from a collision of his motorcycle and a van being driven by Russell Kuhn, III. The accident occurred within the City. Immediately prior to the collision, Force was riding his motorcycle eastbound, approaching Kuhn who was traveling westbound in his van. As the two vehicles entered an intersection, Kuhn turned left in front of Force. Force's motorcycle struck Kuhn's van near the passenger door. As a result of the collision, Force suffered massive head injuries and was in a coma when his mother, as his guardian and conservator of his estate, filed this suit.

In his petition, Force alleges that Kuhn failed to yield to oncoming traffic and that the City and KDOT were negligent in failing to keep the street in a reasonably safe condition. Force settled his claim against Kuhn and dismissed him from the action. Force alleges that the accident probably would not have occurred if the City and KDOT had installed a protected left-turn arrow at the intersection. Force also alleged several other specific instances of negligence by the defendants, such as failing to make or update traffic counts at the intersection and failing to review the intersection's accident history; but each of these allegations is a part of the general allegation that the City and KDOT were negligent in failing to install a left-turn arrow at the intersection.

Following discovery, the City and KDOT moved for summary judgment. Based on the summary judgment motions and Force's response, the court found the following facts to be uncontroverted:

"5. There was no protected left-turn signal for traffic turning off of 23rd Street/K-10 Highway at this intersection. Specifically, there was no left-turn signal protecting Mr. Force, the plaintiff, from Mr. Kuhn's vehicle and all other westbound traffic on 23rd Street/K-10 Highway turning south "6. Plaintiff's basic cause of action against the City of Lawrence and KDOT is that the accident more probably would not have occurred if a protected left-turn signal had been installed at the intersection....

"7. Defendant KDOT will normally study an intersection on a connecting link if so requested by the local authorities. Defendant KDOT can study an intersection on a connecting link on its own initiative. Defendant KDOT did not do so in this case.

"8. 23rd Street/K-10 Highway is designated as a connecting link in the State Highway system.

"9. The Manual on Uniform Traffic Control Devices (MUTCD) does not set forth any conditions upon which a traffic signal with left-turn phasing is required. The MUTCD sets forth no criteria whatsoever concerning the issue of left-turn phasing or signaling.

"10. There are no federal or Kansas standards or manuals which require that left-turn phasing be installed under any given circumstances; however, other public or private entities publish guidelines for suggesting installation of left-turn signals. These are the Manual of Traffic Signal Design and the Traffic Control Devices Handbook relied upon by the plaintiff's expert, Mr. Glennon.

"11. Defendant KDOT's expert, the Assistant Bureau Chief for KDOT, opines that a left-turn signal at the intersection was not justified prior to Plaintiff's accident by any guidelines used by KDOT. Plaintiff's expert witness opines that a left-turn signal was justified, and would have made the intersection safer, and probably would have prevented the accident in question.

"12. Defendant KDOT's expert further opines that the traffic volume at the intersection is insufficient to meet the guidelines followed by KDOT to determine when left-turn signals are needed. Plaintiff's expert opines that the traffic volume criteria as set forth in the Manual of Traffic Signal Design and the Traffic Control Devices Handbook was met to justify the left-turn signal. Plaintiff's expert stated the accident experience at the intersection also justified the placement of a left-turn signal. KDOT's expert admits the accident experience criteria as set forth in the Manual of Traffic Signal Design and the Traffic Control Devices Handbook was met for the purposes of considering the desirability of the placement of a left-turn signal at the intersection. City's expert likewise agreed with the opinion of KDOT's expert."

The court, having found that the Manual on Uniform Traffic Control Devices (MUTCD) does not contain any criteria or suggestions for determining the need or desirability for placement of a left-turn signal, concluded that the decision of whether to do so is discretionary and that both defendants are immune from liability under the KTCA. The court further found that, as the MUTCD establishes no duty for the placement of such a signal, neither of the defendants can be considered negligent for their failure to do so. The court granted the defendants' motions for summary judgment, and Force appealed.

A trial court may grant summary judgment where there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. K.S.A.1991 Supp. 60-256; Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).

"What constitutes a 'genuine issue of material fact' appears to account for most of the voluminous opinions on the question.

"It may be said an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact." Smith v. Engel, 206 Kan. 298, 299-300, 477 P.2d 937 (1970).

The record is viewed in the light most favorable to the nonmoving party, who is entitled to the benefit of all inferences that may be drawn from the admitted facts. Hunt v. Dresie, 241 Kan. 647, 652, 740 P.2d 1046 (1987).

Force contends the trial court erred in granting summary judgment as there is a factual dispute about whether a left-turn signal was required to make the intersection reasonably safe. The City claims that the decision to install a protected left-turn light is a discretionary function for which the City is immune from liability under the KTCA. The City also claims that its act of omission was not the proximate cause of Force's injury. KDOT also argues that the discretionary function exception to the KTCA provides the defendants with immunity from liability. Additionally, KDOT claims that Force cannot prove the essential element of duty where the MUTCD, which the Secretary of Transportation adopted pursuant to K.S.A. 8-2003, does not establish any standards for the placement of protected left-turn signals.

The duty of governmental entities for placement of traffic signs and the contention that placement of such signs is a discretionary act has been considered by the Kansas Supreme Court in Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982). The plaintiff in Carpenter was injured when the automobile in which he was a passenger went off the roadway on an unmarked curve and struck an embankment. The plaintiff...